115 F.4th 1217
9th Cir.2024Background
- Coastal Environmental Rights Foundation (CERF), an environmental group, sued Naples Restaurant Group and its owner for annually setting off fireworks over Alamitos Bay without a Clean Water Act (CWA) permit.
- After a bench trial, the district court found that only one firework in the 2022 show resulted in pollutant discharge but held there was insufficient evidence for ongoing violations.
- In the interim, a general National Pollutant Discharge Elimination System (NPDES) permit became available specifically authorizing such discharges, which Naples obtained.
- CERF appealed, seeking declaratory/injunctive relief, civil penalties, and attorneys’ fees even though Naples had obtained the permit post-trial.
- Central to the appeal is whether the newly issued permit moots CERF’s Clean Water Act citizen suit, based on whether the alleged violation could "reasonably be expected to recur."
- The appellate court held the case moot and vacated/remanded for dismissal, over a dissent arguing insufficient evidence Naples’ violations could not recur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the case moot where Naples has obtained a permit? | Violation may recur; permit doesn’t guarantee compliance | No reasonable expectation of recurrence; permit grants compliance | Case is moot; permit removes reasonable expectation of recurrence |
| Are CERF’s requests for injunctive/declaratory relief still live? | Needed to stop unpermitted discharges | Permitted activity can’t be enjoined | Moot; no ongoing violation; injunction/declaration not appropriate |
| Are civil penalties still available after compliance? | Penalties deter future violations, should survive even if injunction moot | Penalties moot if deterrence function lost, per Laidlaw | Civil penalties moot if violations not reasonably likely to recur |
| Does a request for attorneys’ fees keep the controversy live? | Fees reflect continuing interest in the case | Insufficient alone for Article III case when other claims moot | Attorneys’ fees claim can’t alone sustain controversy |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (establishes citizen suit mootness and burden for showing violations will not recur)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (deterrence function of civil penalties and the mootness standard for voluntary cessation)
- Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (clarifies mootness analysis when regulatory change may affect relief)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (standing and requirements for redressability and Article III jurisdiction)